The Washington Post earlier this year revealed US involvement in a 2008 Israeli operation that killed Hezbollah’s Imad Mughniyah in a Damascus parking lot. In discussing various legal aspects of the operation, Ryan Goodman and Sarah Knuckey questioned whether the killing amounted to perfidy (and also spawned a Twitter debate with, among others, Mary Ellen O’Connell, who was quoted in The Washington Post as saying that she considered the killing to be perfidy).
In my view, the killing may have been a perfidious act if it was committed under specific circumstances. My thoughts below are in part based on a discussion I had on the same topic with Kevin Jon Heller and Ian Henderson, in the comments to Kevin’s post on Opinio Juris, and as such benefits from having received their views.
Parameters of the discussion
At the outset, I should clarify that in discussing perfidy, I do not mean to say that Mughniyah’s killing took place during a situation of armed conflict. It actually seems there was no international or non-international armed conflict ongoing at the time, in which case international humanitarian law (IHL) did not apply, and consequently no violation of IHL could have taken place, including perfidy. Be that as it may, if an armed conflict existed at the time and IHL applied, it could — depending on the actual circumstances, which are not altogether clear — be considered as an act of treacherous or perfidious killing.
To focus on perfidy proper, rather than any other legal aspects of the killing, let us assume that:
- The setting was an international armed conflict (IAC) (the relevance of which is explained by Marty Lederman and Ryan and Sarah)
- The operation was conducted by regular armed forces (see Kevin’s post)
- Mughniyah was an enemy combatant; and
- The SUV (on which the bomb was mounted) was, at least in appearance, a civilian vehicle
Using the aforementioned parameters, we can now conduct a case study based on Mughniyah’s killing:
During an IAC, one of the belligerent parties (A) intends to target a member (M) of the opposition (B). At a given moment, M walks on a civilian parking lot in a city (D). D is not near the frontline and no active fighting took place in or near the city. Whilst walking on the said parking lot, M is targeted by A and killed. A (with eyes on target) used a remotely operated bomb, mounted on a civilian vehicle.
M was a legitimate target, precautions were taken to minimize civilian casualties, and it appears that little if any collateral damage occurred (and in any case M was a high value target). However, an attack on a legitimate target can still violate IHL when a prohibited method is used, such as a banned weapon; or if the attack is carried out in a perfidious manner.
Presumably, A did not replace the spare tire of a random civilian SUV (owned by a citizen of D) with the one carrying the bomb. More likely, it used a car specially modified (e.g., having tested the height and angle of the spare tire before). Before modification the SUV may have qualified as regular civilian vehicle, but with a bomb mounted on it and the way it was used (effectively as a launch pad for the explosive), it became a military object. Yet, it still looked like a regular civilian vehicle.
The key question is then whether pretending that a military object is a civilian object, with a view of using it to wound or kill an adversary, constitutes perfidy and is consequently prohibited.
A difference between special protection and regular protection?
Perfidy is defined in Article 37 of First Protocol Additional to the 1949 Geneva Conventions (AP I) as killing, injuring, or capturing an adversary through “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict.” (This prohibition, based on Article 23(b) of the Hague Regulations, is reflective of customary law. The Rome Statute tracks the Hague Regulations’ wording, but the Elements of Crimes introduce the AP I language.)
Killing the enemy, whilst feigning special protection, for example by wearing the outfit of an ICRC delegate, is clearly perfidy (as well as misuse of protected emblems, subject to a separate prohibition), even amounting to a grave breach under AP I.
A civilian serving as an ICRC delegate is to be afforded special protection under IHL and a “regular” civilian “only” enjoys regular/standard protection, but killing or injuring the enemy whilst feigning “regular” civilian status also constitutes perfidy, and is included as the third example of Article 37 of AP I. Based on the language of that article, it stands on the same level as feigning to belong to another group of persons protected under the 1949 Geneva Conventions, namely the wounded and sick. Nonetheless, in Fleck’s Handbook, the third example is said to be the most important, as it “constitutes the classic case of ‘treacherous killing of an enemy combatant.’” (p. 228, 2nd ed.).
Following, the same two-step approach for objects, it is clear that using a vehicle with special protection, such as an ambulance, to target the enemy constitutes perfidy. However, if we take the same step down the line to a “regular” civilian object “only” entitled to the standard protection to be afforded to civilian objects, things appear to change — at least, according to Ryan, Sarah, Kevin, and Ian (and W. Hays Parks in a comment in the Post). They all appear to consider using a civilian object (or making a military object appear as civilian), to target an enemy combatant, to be legitimate.
To me, it is not obvious what justifies the distinction they make between person and object. The examples of Article 37 are not exhaustive and the prohibition says “protection under the rules of international law applicable in armed conflict.” Under IHL, civilian objects are protected, just like civilians and wounded soldiers are. Indeed, the annotated US Commander’s Handbook on the Law of Naval Operations, states:
Since civilians are not lawful objects of attack as such in armed conflict, it follows that disguising combatants in civilian clothing in order to commit hostilities constitutes perfidy. This is analogous to other situations where combatants attempt to disguise their intentions behind the protections afforded by the law of armed conflict in order to engage in hostilities. (Emphasis added.)
IHL is generally anthropocentric and the protection for civilian objects mainly derives from their importance to the civilian population, as well as the difficulty to separate the two (i.e., civilians often find themselves in and around civilian objects). This only strengthens the need to deter the (perfidious) use of such objects for military operations. Laurie Blank explains that:
when fighters intentionally disguise themselves as civilians in order to lead soldiers on the opposing side to believe that they need not take defensive action to guard against attack, they commit perfidy. The indirect consequence of such actions is that civilians are placed at greater risk, since soldiers previously attacked by fighters disguised as civilians may be more likely to view those who appear to be civilians as dangerous and respond accordingly.
As illustrated by the below quote from Sean Watts, this applies equally to, for example, civilian vehicles, which under normal circumstances carry (protected) civilians.
Obliged to accord protection vs. entitled to protection
The AP I definition clearly includes two versions of perfidy: Part A, the attackee is tricked in believing that he is entitled to protection; and Part B, the attackee is tricked into believing that the attacker is entitled to protection. In their post, Ryan and Sarah focus on Part A (“How was Mughniyah lulled into a false sense that he was lawfully protected?” [my emphasis]). Hays Parks similarly focuses on the target’s belief that he was protected under IHL. He even deletes the other part of the definition from his restatement of the definition.
This approach is surprising. Why only deal with that part of the definition? Part of the disagreement may result from this focus on Part A (rather than Part B), so it is worth to briefly address Part A.
The common understanding of perfidy is reflected in Part B of the AP I definition: “acts inviting the confidence of an adversary to lead him to believe that he … is obliged to accord protection under the rules of international law applicable in armed conflict.” Indeed, all examples given in the Customary IHL Study fall under this part. What is more, Part A does not really make sense, when applied to a lawful target (note: the Hague Regulations’ version of perfidy extended to both combatants and civilians belonging to the opposite party). Why would a combatant believe that he was entitled to protection under IHL? Unless he had been taken prisoner or fallen hors de combat, such protection does not arise.
The somewhat odd wording, which did not appear in the ICRC’s draft definition of perfidy, is not explained in the drafting history. Perhaps there was a wish to include a classic version of treacherous killing of the enemy by feigning a cease-fire agreement (listed as a separate customary rule by the ICRC). Fleck, for example, mentions as an example of perfidy, the entering into a “humanitarian agreement to suspend combat with the intention of attacking by surprise the adversary relying on the agreement.” A cease-fire was agreed upon by Israel and Hezbollah after the 2006 conflict. However, it is arguable though, that no protection under IHL is created by such agreements. Moreover, when fighting continues despite a cease-fire being in force, IHL continues to apply and targeting combatants is not a violation. It therefore makes more sense to focus on Part B, which will be done below.
During the drafting of AP I, the ICRC clarified that perfidy “was based on the objective notion of good faith and on the subjective notion of intention:” the good faith on the side of the adversary, and intent to betray that good faith in order to “create surprise” on the side of the attacker. This goes to the core of my disagreement with the view of Ryan, Sarah, and the others, best captured by Kevin, who submitted that a “positive act to invite confidence” needed for a killing to be perfidy, was hard to discern in the killing of M (from our case study). That is not an unreasonable position. In my view, however, the opposite is true. Camouflaging a bomb as a civilian car does constitute a positive act to invite confidence.
The bomb was not just placed on the street or in a parking lot. It was “disguised” as a civilian object (because that is what effectively is done, when a bomb is planted in or mounted on a civilian car). The car thereby became a military object, but (purposely) no measures were taken to distinguish it as being military. Using a civilian vehicle “invites the belief” that this was indeed a civilian SUV. Seeing a regular civilian car, a combatant should be able to trust (be confident) that he is not going to be attacked from that car (or that it is not “going to attack” him by way of a shaped or targeted detonation). And, of course, a civilian vehicle was used on purpose, rather than a green vehicle with IDF or US army symbols on it, as surely M would not obliviously have walked up such an army vehicle belonging to the enemy.
If IHL prohibits combatants to approach a military checkpoint in an ambulance and attack the guards from within that ambulance (or set of a bomb), why should it be any different if that checkpoint if a regular civilian car is used instead? Many such attacks occurred in Iraq and Afghanistan, where under the guise of being a regular passer-by, soldiers at checkpoint are attacked from civilian cars. The US Senate called the following perfidy: “an Iraqi non-commissioned officer, reportedly posing as a taxi driver, detonated a car bomb that killed him and four U.S. soldiers.” The same event is referred to as perfidy here (p. 144)and here. Human Rights Watch referred to similar acts in Iraq as perfidy and so does Michael Schmitt (p. 32).
Does it make a difference if such a car is remotely operated (i.e., if it is an object only)? The following sources appear to indicate, there is no difference. In relation to the conflict between the FARC and the government of Colombia, HRW wrote that “[w]hen bombs are disguised as non-military objects … they may qualify as a violation of the ban against perfidy”. Nils Melzer lists the remotely detonated car bomb used to kill Chechen rebel Zelimkhan as an example of perfidy. (p. 414). Scholars from various sides of the IHL spectrum consider feigning civilian status for civilian objects perfidy (e.g., here on pages 894–95, here on pages 53–55, and here on page 237), and so did the majority of the experts drafting the Tallinn Manual on cyber warfare (see p. 185). Israel condemned a Hamas manual showing, for example, how to camouflage bombs as civilian objects. Without pronouncing on the quality of prosecutions before US military commissions, the most significant example of condemnation of an act quite similar to the killing of M, is the following charge against Al Hadi al-Iraqi:
… al Hadi al-Iraqi invite[d] the confidence and belief of at least one person that a vehicle appearing to be a civilian vehicle was entitled to protection under the law of war, and, intending to use and betray that confidence and belief, did, thereafter, make use of that confidence and belief to detonate explosives in said vehicle thereby attacking a bus carrying members of the German military …
Notwithstanding its origins in the notion of chivalry, the modern understanding of perfidy serves to safeguard the concept of distinction. As Fleck points out, “[o]bscuring the distinction between combatants and civilians [through perfidy] is extremely prejudicial to the chances of serious implementation of the rules of [IHL]”. Using a civilian-looking SUV risks a reaction, such as the following one, recounted by Watts (note also his use of “objects”):
Repeated incidents of perfidy greatly compromised U.S. forces’ trust that civilian persons and objects posed no threat. A U.S. aviation commander describes routinely attacking planters, garbage piles, and vehicles outside Iraqi homes in response to enemy use of civilian cars and objects to house improvised explosive devises.”
Therefore, on the basis of the foregoing analysis of the language of Article 37 of AP I, the rationale behind the prohibition of perfidy, and the protection afforded by IHL to both civilians and civilian objects, it is not evident why it would be prohibited for a combatant to disguise himself as a civilian and carry out an attack, yet he would be allowed to feign civilian status for a military object and use it for an attack.
In a post on Monday, I will conclude my analysis and will address some of the unanswered questions posed by Ryan and Sarah about the difference between using a car bomb and other methods to kill by which the adversary cannot see the attack coming.
Editor’s Note. This is the first post of a two-part series by the author examining this issue. His second post is here. A response to these posts by Kevin Jon Heller can be found here.